Thus far from the remarks of Professor Goodheart. And if the
remarks were valid there, they are all the more valid here,
Your Honours. A person cannot demand from you that you
should be neutral in regard to the crime of genocide. And if
Defence Counsel thinks that there is any man in the world
who can be neutral in respect to to this crime, such a judge
would be the one who is not competent. But it is possible to
be just, even with such a grave crime. It is possible to
have a fair trial even when the judges are required to
suppress within their hearts their personal or national
anguish, and to judge according to the evidence which is
before them. And only in this way do I ask you, Your
Honours, to judge. Defence Counsel has mentioned a judgment
of our Supreme Court. During the recess I tried to find out
to which of the two he was referring. Since the sentence
quoted was evidently not in a judgment of the present
President of the Supreme Court, but of its previous
President. It seems to me, if I am not mistaken, that
Defence Counsel is referring to a decision in Various
Applications 3/50 which was published in the Judgments of
the Supreme Court, Vol. 4, on page 592 where the Accused:
sought to disqualify the judge on the ground that on a
previous occasion he had not behaved properly in front of
the same judge and he was afraid that the judge would be
prejudiced against him, the accused.
Presiding Judge: Is that the Weinberg case?
Attorney General: Yes. The second case to which I thought
the Defence Counsel might possibly be referring by quoting
an extract, is the case of Trilfus vs. the Attorney
General, Criminal Appeal 152/51 – Judgments Vol. 6, page 17,
in which our Court also laid down the principle that justice
must not only be done but must be seen to be done, and the
facts are well-known. The application was a claim for
disqualification against a particular judge for a particular
Presiding Judge: Mr. Hausner and Dr. Servatius – you will
find judgment given on the same point by our Supreme Court a
few days ago, Gil Halls vs. the Appeals Committee for
Business Tax in Tel Aviv. It would be worthwhile for you to
study this judgment as well.
Attorney General: Thank you, Your Honour. I must admit that
a few days ago I was more involved in the preparation for
this case than in studying judgments. At any rate these
arguments that were mentioned here do not have any validity
in disqualifying judges on the ground of their national
affiliation, which is the contention of Defence Counsel. I
ask you not to accept it. If I succeed in replying to the
other arguments about competence, and I hope I shall
succeed, there is nothing wrong in the fact that a Jewish
judge, an Israeli, should judge the oppressor of his people.
On the contrary, we can be thankful for the fact that there
is some place in the world, where Jews possess sovereignty,
courts, prosecuting machinery and the ability to place on
trial a man who committed crimes against this people.
As I shall show the Court, a tradition has developed in
England and also in the United States according to which the
manner of bringing the Accused: into the area of
jurisdiction is not relevant to the question of competence.
A violation of the sovereignty of a state by an act of
incarceration, arrest within its borders and the removal of
a person outside its territory can become an issue between
states. And indeed they did serve as the subject of a
controversy between the State of Israel and the
Government of Argentina in the matter we are discussing.
But in all the authorities I shall quote forthwith it is
laid down that it is not the concern of the Accused: to
complain about violation of the sovereignty of another
state. It is the concern of the state affected. From the
point of view of the Court before which a person is brought
in accordance with an indictment, the question of competence
can arise in consequence of the substantive law of the
country of the trial, or in consequence of procedural
practices. Adolf Eichmann has been charged according to
valid substantive law and I shall deal later on with the
objections of Defence Counsel to the validity of the law-
while Section 4 of the criminal Procedure (Trial upon
Information) Ordinance, establishes the competence of the
District Court of Jerusalem.
From the point of view of the external circumstances, the
question can obviously arise: was the Accused: promised
suitable possibilities for defence? The Court sees here a
defending counsel who was chosen by the Accused: himself to
defend him. In order to enable him, the Defence Counsel, to
appear here this morning, the Knesset had to amend the
Advocates Ordinance of the State of Israel. And it may be
assumed that the Court will be punctilious that all the
other measures which our legal system insists on be strictly
observed, in order to safeguard a fair trial.
Before analysing the authorities I should like to say only
one thing about that letter the content of which Defence
Counsel read, signed as he says under coercion and pressure.
It is not the signature of Adolf Eichmann on that letter
which assigns to an Israeli court the authority to try him.
I am merely surprised why that letter was so completely
invalid for all possible purposes, but was perfectly valid
for Dr. Servatius to rely upon on 22 December 1960 when he
applied to the Minister of Justice to grant his request that
the State of Israel should bear the costs of the defence.
Presiding Judge: I do not understand this argument, Mr.
Attorney General: I do not understand why this letter has
been mentioned at all. I do not base the competence of the
court on the letter, but I fail to see the possibility of
saying: This letter is void from Eichmann’s point of view,
but it is binding on you, as the Defence Counsel wrote.
Presiding Judge: This letter is not before us.
Attorney General: I am ready to submit the letter from Dr.
Servatius to the Minister of Justice. It says in the
paragraph referred to, as follows:
“Hierzu verweise ich auf die Erklaerung, die Adolph
Eichmann im Mai 1960 anlaesslich seiner Festnahme in
Argentinien unterzeichnet hat. In dieser ihm
vorgelegten Erklaerung erwartet er die Gestellung
eines Rechtsbeistandes und hat sich daher bereit
erklaert, nach Israel zu kommen, um dort vor ein
zustaendiges Gericht gestellt zu werden.”
Dr. Servatius, inter alia, submitted his request to the
State of Israel concerning the defence costs, and this was
Presiding Judge: Are you submitting the letter? Do you have
a Hebrew translation of the letter?
Attorney General: No, your Honour. I only thought of
submitting it this morning.
Presiding Judge: Please translate it. Let the interpreter
see what you quoted, and which paragraph, so that he may
translate the part which is relevant for you.
Interpreter “I hereby refer to the statement signed by
Adolf Eichmann in May 1960 when he was detained in
Argentina. In this statement which was submitted to him he
expected to be given legal aid, and because of this he
expressed his readiness to come to Israel to appear there
before a competent Court.”
Judge Halevi: Where is the Accused’s letter of the month of
Attorney General: I shall produce it immediately. This is
the original letter. It was correctly read out by Defence
Presiding Judge: I mark the letter which you submitted this
morning T/2 – the Defence Counsel’s letter dated 22 December
1960. Are you submitting this letter too?
Attorney General: I was requested by Judge Halevi to
submit it and I do so submit it.
Presiding Judge: I mark the letter T/3.
Judge Halevi Do you, Sir, maintain that the letter of May
1960 was signed by the Accused: of his own good will?
Attorney General: Your Honour, I say as I shall argue
forthwith, that there is no practical difference whether it
was signed of his own good will or not. This letter does
not have any value from the point of view of providing a
ground for competence, and I would not have mentioned it at
all and I had no intention of relying on it, had it not
been for the remarks made this morning concerning this
matter. This question does not strengthen or weaken the
case at all.
Judge Halevi Then the two letters are not relevant in
Attorney General: In practice they are not relevant.
Presiding Judge: You say: There is no practical difference
whether this statement was made…
Attorney General: Freely or under compulsion.
Dr. Servatius: I request the Court that Document No 3 as
you designated it…
Presiding Judge: Document T/2. Dr. Servatius…In view of
the fact that the Prosecution itself has stated that it does
not strengthen or weaken the case, should be declared as
Attorney General: I shall not rely on this letter, not on
the first nor on the second.
Judge Halevi: Perhaps it is possible to ask Dr. Servatius
if he relies on the letter of his client of May 1960 –
perhaps that one can also be eliminated?
Dr. Servatius: I refer to the letter which Adolf Eichmann
wrote himself, which is Exhibit No 3.
Presiding Judge: I understood previously that you were
referring to the letter which you yourself wrote and that is
T/2. Evidently this is my mistake.
Judge Halevi: You, Sir, have asked us to eliminate the
letter of Adolf Eichmann, to remove the letter of the
Accused: from our deliberation. Is that correct? Or is it
the letter that you wrote to the Minister of Justice, or
Dr. Servatius: I wish to declare as irrelevant only the
letter which I, Defence Counsel, wrote to the Minister of
Justice, and not the letter which Eichmann himself wrote,
which in my opinion is relevant.
Presiding Judge: We are talking of letter T/2 – that is
Judge Halevi: Why, in your opinion, Dr. Servatius, is the
Accused’s letter relevant?
Presiding Judge: If you have anything to add to the matter
of these two letters which arises here, please continue.
Dr. Servatius: I will say this briefly: Only the letter of
Adolf Eichmann himself is relevant in relation to the
decision of the trial itself, and it does not add or
subtract whether the Attorney General: decides that it is
relevant or not.
Attorney General: May I be permitted to continue, your
Presiding Judge: Please do.
Attorney General: Your Honours, I mentioned and submitted
Dr. Servatius’ letter only because I do not want a double
standard approach. He cannot ascribe on the one hand, as he
says, to official representatives of the State of Israel an
act of coercion in the signing of a letter and on the other
hand rely on that selfsame letter for the sake of any object
required by him. This cannot be. Either the letter is
entirely invalid, and then it is invalid for any purpose,
whatsoever, or it is entirely valid and then it is valid for
every purpose whatsoever. But it is not possible to
disqualify it for one purpose and validate it for another
purpose. And to this I objected. I objected to the nature
of the argument.
Presiding Judge: All right – perhaps you will not prolong
Attorney General: I shall not prolong the discussion on
this. And, with the Court’s permission I should like to pass
to an analysis of the authorities.
Presiding Judge: Please be seated while we record a
decision in this matter.
Dr. Servatius: May I say something?
Presiding Judge: Please tell him that the normal practice
is that whoever objects, objects. Thereafter his colleague
replies to him, and with the special permission of the Court
the objector can argue once again. But there must be an end
to the debate. This time I shall still allow him to make his
Dr. Servatius: In this document there are two different
things: one – the agreement of the person under compulsion;
two – the promise of an authorized person, one who possesses
authority; and this promise must be kept.
Presiding Judge: I understand, therefore, that your
argument is that the portion referring to the promise is
permitted, and the other portion is invalid. Is this your
Dr. Servatius: Yes, certainly.
Presiding Judge: Dr. Servatius, I am sorry. It is necessary
to turn to you again. I understand that these last remarks
in your argument referred to your letter dated 22 December
and not to the Accused’s statement. With regard to this
letter of 22 December you said that part of it is valid and
part is invalid. Did I understand you correctly or does it
refer to Exhibit T/3 – the statement of the Accused:
Dr.Servatius: I suppose I did not express myself properly.
My letter, signed by me, T/2, is proper in all its parts and
I am not challenging it. I only replied to the Prosecutor’s
argument that any demand was based on the promise that was
included in Eichmann’s letter which, I say, was dictated to
Presiding Judge: Decision No. 1. We accept letter T/2 as an
exhibit without expressing an opinion as to its value as
proof. I would like to explain to you, Dr. Servatius, that
in future, if you wish to object to the submission of a
document, you must state your objection before the document
is marked by the Court, otherwise you will be too late.
Dr. Servatius: Yes, certainly. I have understood this.
Attorney General: Before I proceed to an analysis of the
authorities, I should like to deal with one problem which
Defence Counsel raised this morning, namely the difficulties
in preparing the defence of the Accused: in view of the fact
that the trial is being held in Israel. And here he is
unable – as he argues – to bring witnesses; some fear for
their personal safety while for others there is no one to
pay the expenses of their journey and their stay in Israel.
Already in preliminary contacts with the Defence I informed
them that I would support an application on which, of
course, only the Court could decide, that affidavits could
be submitted as evidence. And if Defence Counsel has people
who are ready to give testimony that contains something in
favour of his client, I will not bar the way even though I
would be deprived of the right of cross-examination. I would
agree to the submission as to their relevance. But I am
ready to take a further step forward.
Judge Halevi: Pardon me, Sir. You say that generally
speaking you would be prepared to accept affidavits of
overseas witnesses, of witnesses for the defence, I
understand, and in this way waive your right of cross-
Attoney General: The stand I am taking is not such a
general one. If Defence Counsel convinces us that there is,
in fact, a witness who is able to describe matters which are
relevant to the defence and there is no possibility of
bringing him to Israel, as he himself is likely to be placed
on trial here because of offences which he himself committed
or because the defence does not have the financial means for
this, I am ready to discuss each individual case and if I am
convinced that it is right and just that the affidavit
should be submitted to the Court, I will support the
application that such an affidavit should be submitted to
Judge Halevi: I understand. But the difficulty will remain
in certain instances. How can the Court depend on the
credibility of the witness, if there will be no cross-
examination. Possibly you will in this way be waiving or be
forced to waive a cross-examination. Generally speaking in a
case where a trial is being conducted with witnesses
testifying before the Court – the waiver of cross-
examination by the opposite side is considered in most
instances tantamount to absence of any dispute in regard to
the witness’ reliability. Here it will be impossible to come
to such a conclusion. If we do not arrive at this
conclusion, how can a judge distinguish between reliable
evidence and unreliable evidence?
Presiding Judge: Perhaps it is still premature to deal with
this question at this stage.
Attorney General: If the Court wishes to have my reply, I
will naturally give it.
Presiding Judge: When a concrete case arises we shall go
into the matter.
Attorney General: As the Court decides.
Presiding Judge: This is not a decision – this is a
Judge Halevi: I see the relevance at this stage in that the
Attorney General: wishes to reply to the argument that there
can be no fair trial owing to the lack of the possibility of
bringing defence witnesses here from abroad. The answer is
that there is a good alternative for this and that is an
affidavit. My question is: the alternative is not such a
good one, since it does not allow the Court to differentiate
between truthful evidence and false evidence. In this way we
may be inundated with thousands of false testimonies.